UCT EXAM APRIL/MAY

Transcription

1 UCT EXAM APRIL/MAY

2 Instructions for the Final Examination This is an open-book examination. It is a customised version of the Harvard Law School Online Section Exam. When preparing your answers, you may read, watch, or rely on any material you wish. The exam will be distributed at 15h00 SAST on 27 April All answers must be submitted by 14h59 SAST on 1 May The procedure for distributing the exam and for submitting answers is as follows: At 15h00 SAST on 27 April 2016 the exam will be posted on the CopyrightX: UCT H2O page ( in the Exam (2016) section. Answers must be submitted, as a word document that contains both the questions and the student s answers, on 1 May at or before 14h59 SAST to the following address: andrea.blaauw@uct.ac.za Submissions must clearly state the student s name. During the examination, all of the course materials (including the assigned readings, recorded lectures, maps of copyright law and theory, and discussion forums) will remain available at at H2O. However, during the examination period students are not be permitted to post to the CopyrightX online discussion forums or to discuss the exam anywhere else. The CopyrightX:UCT team will not respond to questions concerning the exam unless those questions involve emergencies. If an emergency does arise, please tobias.schonwetter@uct.ac.za, providing details. If you find any aspect of the exam s content or instructions to be ambiguous, do not request a clarification. Instead, develop your own interpretation that resolves the ambiguity and make that interpretation explicit in your response. The results of the exam will be communicated in mid June. The exam contains four questions. You must answer all four. Your answer to the first question may not exceed 1200 words. Your answer to the second question may not exceed 1000 words. Your answer to the third question may not exceed 800 words. Your answer to the fourth question may not exceed 800 words. Your answers will be weighted as follows: Question #1: 40% Question #2: 30% Question #3: 15% Question #4: 15% 2

3 CopyrightX: UCT FINAL EXAMINATION 2016 Question #1 Since 1998, Miguel has been a freelance photojournalist. He lives in Wellfleet, Massachusetts (a prosperous tourist town on Cape Cod), but spends at least half of his time travelling for work. He earns a good income, but he is bored. When taking photographs of politicians giving speeches, he concentrates on making images that he will be able to license to newspapers. But, to keep himself amused, he also looks for opportunities to take unusual or irreverent photos, which he does not offer to newspapers. Instead, he prints and frames those photos and then offers the prints for sale in a small gallery adjacent to his house. Among the photos on sale in Miguel s gallery in the summer of 2015 were some images he had taken of politicians manifesting surprise or alarm. Copies of a few of these are set forth below: The politician who appears in the photograph in the lower right corner of this array is Hillary Clinton. Over the course of the summer, Miguel sold five copies of the photograph of Clinton, each for $300. He did not keep a record of the names or addresses of the purchasers. 3

4 On April 7, 2016, Miguel was in Houston, Texas, covering the Presidential primary elections in that state. Outside a polling place, he encountered a group of men holding up signs that made clear that the men supported Donald Trump, a candidate for the Republican nomination. Most of the signs were conventional, but one poster caught his eye. A copy of it appears below. 4

5 Miguel recognized, of course, that the poster used the color scheme and motif of the famous Obama Hope poster (a copy of which appears at right). But something else about the Stop poster intrigued and annoyed him. So he took a photograph of it. A week later, back in Wellfleet, Miguel was reviewing the photos he had taken in Texas and came upon his image of the Stop poster. Suddenly, he realized why it had struck him: the image of Hilary Clinton contained in the poster resembled the photograph of Clinton that appears on page 1 which he himself had taken. The more he compared the two images, the more convinced he became that the poster had been derived without permission from his own photograph. Miguel does not have strong political affiliations, but he loathes Donald Trump. The possibility that one of his photographs was being employed to aid Trump s campaign infuriated him. So he set out to find its source. Using the Google image search function, Miguel located a website, that offered to send a copy of the Stop poster free of charge to anyone who expressed an intention to vote for Trump. The website provided contact information for its founder and operator: Tom Triumph, 2506 Main Street, Billings, Montana. Miguel is considering taking legal action against Tom. Write Miguel a letter, assessing his legal options. If you need additional information to provide him guidance, say what that information is and why it matters. Your letter may not contain more than 1200 words (including any footnotes). [Note: All of the events described in this question are fictional. The photographs used to illustrate the fictional narrative were derived from: ; p%3a%2f%2fhssprod.hss.aol.com%2fhss%2fstorage%2fmidas%2f ead399834c83648a 6e4ae2443%2F %2Fceb353062d2742c0954b52cfa2ea4039.jpeg ; ; and _the_right_to_be_angry_with_hillary_clinton_her_ _scandal.html.] 5

6 Question #2 Zanine and Basil Isaacs live and work in Woodstock, Cape Town. They met in 1995, while both were students in the Musical Theatre Writing Program at UCT. Zanine was training to be a playwright; Basil was training to be a composer. They decided to collaborate in writing a musical for their final project. Their product received a good grade. Soon after graduation, Zanine and Basil married and moved to Woodstock. Between 1996 and 2014, they wrote 20 additional musicals together. Most were only mildly successful, but one was shown at the Artscape. Zanine and Basil receive licence fees each time one of their plays is produced, but those fees are insufficient to support their lifestyle. To make ends meet, both are employed as teachers in the drama department in the Queen s Park High School (QPH). In recent years, the budget for QPH has been reduced sharply. In September of 2015, the administrators of the Woodstock School District announced that, to save money, they planned to eliminate the QPH drama department in June Dismayed, the teachers and students in the department developed a plan to stave off the closure. The essence of the plan: They would create and produce (in the school s auditorium) a serious original musical. Instead of charging nominal ticket prices (as is typical for high-school drama performances) they would charge substantial amounts -- R500 for premium seats near the stage; R300 for regular seats. The money raised from the ticket sales would be used to help fund the drama program, and the quality of the production would convince the people in the area of the importance of keeping the program. Zanine and Basil offered to write the musical. In October, November, and December, they spent many evenings working closely together in their home, creating a grim drama about a group of alienated young adults in the Cape Flats beset by an epidemic of Tik addition. Most of the songs that interspersed the action were laments or expressions of anger. By Christmas, the play, entitled Their Town, was complete. When QPH classes resumed in January 2016, Zanine and Basil spent many afternoons at the school, working with their students, rehearsing the play and preparing the sets. The male lead was assigned to Piet Bezuidenhout, a glowring junior who had tried tik and who the previous year had considered dropping out of school. His anguished, smoldering persona fits the character well. Performances of Their Town were scheduled to begin on 1 March and end on 15 April The drama department placed several advertisements for the play in the Woodstock Independent, the local newspaper. The Woodstock Independent faced a budget crisis of its own, but still enjoyed a substantial base of subscribers in Woodstock and the surrounding suburbs. Ticket sales for Their Town were brisk. The play was very well received. A lead article in the Woodstock Independent described it as gripping, disturbing, and eye-opening. The student actors and Bezuidenhout in 6

7 particular were praised as brilliant and precocious. Word of the quality of the production spread. People began driving long distances to see the performances. On 15 March, the Woodstock Independent carried a full-page advertisement, which had been placed by Apple Computer, Inc.. A copy of the advertisement appears below. The all-new iphone 6s Plus Lights. 4K camera. Ac1on. The game-winning shot. The impromptu dance party. The first ride without training wheels. Your daughter s first lead role. Some things are meant for video. Now you can record those events in resolu1on that s four 1mes higher than HD video. You can zoom in on those 8 million pixels while you re shoo1ng or playing your 4K videos. And with the iphone 6s Plus, op1cal image stabiliza1on is now available for videos in addi1on to photos. So you can shoot smooth, beau1ful videos in lower light. When this amazing recording power is combined the iphone 6s Plus new custom-designed 64-bit A9 chip and LTE Advanced WiFi connec1vity, the possibili1es become endless. Imagine that a business trip prevents you from aqending your daughter s dance performance. No problem. Your husband can take his phone to the recital and stream it to you in real 1me and in brilliant quality. You may not yet be able to have it all, but with the iphone 6S Plus, you can come close. Piet Bezuidenhout s parents, Adel and Jacobus, are divorced but remain on good terms. Adel, a real-estate agent, lives in Salt River; Jacobus, a banker, lives in Johannesburg. Piet visits his father each summer but sees little of him during the rest of the year. 7

8 In a phone conversation with Adel on 20 March, Jacobus apologised for his inability to travel from Johannesburg to Cape Town to see Piet s performance. Adel, who had recently read the advertisement set forth above, suggested to Jacobus a solution: They could both buy new iphone 6s Plus phones. Adel would take hers to the final production of Their Town (on 15 April) and would stream the performance live to Jacobus in Johannesburg. He happily agreed. Piet, informed of this arrangement, gave his best performance on that night. Jacobus, sitting alone in an outdoor café in Sandton, watched and listened to the entire performance on his new iphone. During the performance, Adel occasionally typed into her own iphone brief comments concerning the quality of the music or the acting. These comments appeared at the bottom of Jacobus s screen while he watched. He found them distracting but did not object. Without telling Adel, Jacobus activated the record function on his own iphone when the play began, enabling him to record the entire streamed performance. He later transferred the recording to his laptop computer. He has thus far watched the recording three times. On 20 April 2016 Jacobus sent Apple a letter, describing how he and Adel had used their new phones, praising the technology. Apple, in turn, posted a copy of the letter as a testimonial on its website. Zanine happened to read the letter. Initially, she was pleased. But as she thought about the Bezuidenhout s conduct, she became more angry. In a conversation with Basil on 22 April, Zanine argued that Adel and Jacobus plainly were not poor evidenced by the fact that they had just spent almost R20,000 for two new iphones. But Jacobus had paid nothing for the right to watch the show. Even more galling, in her view, was the role played by Apple. Not only had the company made the Bezuidenhout s conduct possible, it was now encouraging other purchasers of its products to engage in similarly parasitic behavior. She suggested to Basis that a successful copyright infringement lawsuit against Apple, Adel, or Jacobus might enable them to recover enough money in damages to sustain the QPH drama department for years. Basil doesn t much like the prospect of litigation, but is willing at least to consider Zanine s plan. Write Zanine and Basil a letter addressing the following questions: a) What claims, if any, could they assert against Adel? What defenses to those claims would be available to Adel? In a suit against Adel, who would likely prevail? b) What claims, if any, could they assert against Jacobus? What defenses to those claims would be available to Jacobus? In a suit against Jacobus, who would likely prevail? c) What claims, if any, could they assert against Apple? What defenses to those claims would be available to Apple? In a suit against Apple, who would likely prevail? If Zanine and Basil prevailed in a suit against Apple, what remedies would be available to them? If you need additional information to answer these questions, say what that information is and why it matters. Your letter may not contain more than 1000 words (including any footnotes). 8

9 Question #3 Select one of the following dimensions of copyright law: a) joint authorship; or b) moral rights. Briefly describe how the issue is addressed under the law of the United States and how it is addressed under the laws of South Africa and the United Kingdom. Which of the three approaches, in your judgment, is superior? Why? Your answer may not exceed 800 words. Question #4 Select one of the following dimensions of copyright law: a) formalities; b) circumvention of technological protection measures; or c) traditional knowledge. Then select one of the four intellectual-property theories that were examined in the video lectures. What insight into how copyright law should address the dimension you select might be derived from the theory you select? Your answer may not exceed 800 words. -- END OF EXAM -- 9